In this final posting on the series, let’s explore some questions that come to mind when considering all the issues brought up in the previous postings of this series. First, let’s consider the Writ of Certiorari being conducted by the Supreme Court. Remember the petition for Writ of Certiorari involves reviewing the jurisdictional authority of the 6th Circuit Court of Appeals to consolidate all the appellate cases involving the CWR into their court and

their declaration of the nationwide stay. [A more general explanation of the Supreme Court review is the need for a final legal decision regarding which court (District Courts or Circuit Courts of Appeals) has jurisdiction to legally review cases regarding the Clean Water Act and any associated rules.]

These questions give a good picture of the potential confusion and uncertainty that may occur if we continue with the legal course set for the CWR litigation. Many issues have been raised from so many perspectives of the petitioners that it will take considerable amounts of time to sort through all the arguments for or against.

With the pending re-codification of the pre-2015 Clean Water Rule WOTUS definitions, it looks like all cases involving the CWR will be moot, once the re-codification is published in the Federal Register. Though as mentioned in yesterday’s ASWM webinar, the jurisdictional question being reviewed by the Supreme Court will STILL need to be answered because any new rulemaking process or result will inevitably be challenged in court.*

Next let’s move onto the questions brought up by the recent executive orders by the new Administration.

As brought to my attention in yesterday’s webinar, the comment period for step 1 of the re-codification of the pre-2015 CWR (pre-publication DRAFT) appears to be 30 days, which is a very short time period considering the different levels of review that state agencies much go through before final comments are usually submitted to the EPA. As a consultant on these issues, even a 60-day public comment period is hard to meet with competing work day priorities.

Estimates of some were that there is a possibility of a new rule in place by the end of the first quarter of 2018 which is an extraordinarily short amount of time when comparing how long it took for the CWR to become finalized. It was unanimous (from my impression) among those in yesterday’s webinar that it is very important for all interested parties to provide detailed, thoughtful, and specific comments that reflect your point of view – not limiting what or how you comment on the new rule – and potentially reflecting the support of science behind the CWR so that it is in the public record.

A new EPA economic analysis report of the re-codification process was released just last month (June 2017). Clarification of the discussion about economic analysis reports is composed below. **

Congress is getting involved in this process by adding a section (Section 108) to the Energy & Water Appropriations Bill (House Bill 115) that would allow the EPA/DOD to withdraw the CWR without regard to any provision of statute or regulation (pages 12-13 of draft bill dated June 26, 2017/June XX, 2018).

All parties are still in the process of evaluating the effects of the pending re-codification. While the influence “on the ground” is relatively small [essentially WOTUS definition remains the same since the 2008 Rapanos guidance], bigger issues are at stake here: states’ ability and resources to take over the protection, conservation, and restoration wetlands as it appears the current administration is leaning towards [27 states don’t have any dredge & fill program]; fundamental terms that come up repeatedly and we struggle to define in agreement to all, i.e. ditches, relatively permanent waters; and the enormous amount of effort that was expended in providing for a thorough public and agency review of the proposed regulations which is in danger of being completely ignored by the proposed re-codification of the “status quo” since 2008.

Difficulties will continue in the efforts to transform scientific evidence into governmental regulations that will meet everyone’s standards and expectations. The joys of a democratic government!

Thanks for tuning in!

-JMB

*Mootness: Capable of Repetition, but evading review exception.Several exceptions exist to the “mootness” argument, but I’ll only mention one which is titled “Capable of repetition, yet evading review.” A court will likely find that a case is not moot if the plaintiff can potentially be harmed again in the future, even if the plaintiff is not being harmed at the moment the case is heard. Cases dealing with the jurisdictional authority relating to the Clean Water Act could be an example of this exception. A court will hear these cases even if the plaintiff is not affected at the moment of the court hearing, because the plaintiff can become affected again in the future.

**Economic Analysis Reports:1. 2015 EPA Economic Report which provided Cost/Benefit analysis of the CWA, Sections 311, 401, 402, 404 (+). This report was highly criticized based on the quality of the data set used for analysis; no benefits quantified for Sections 311 Compliance, 401 Administration, 404 Stream Mitigation Credits; and some areas of report concentrating solely on one agency’s costs.

3. Miscellaneous other economic analysis reports not to be confused with the above. i.e. Congressional Research Service (CRS) Economic Analysis. Looks like the CRS performs this type of analysis on more than a few government-related issues, besides EPA/DOD environmental rules.

Sources:Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017

Webinar: “What's Next for Clean Water Act Jurisdiction”, Presenters: Jan Goldman-Carter, National Wildlife Federation; Virginia Albrecht, Hunton and Williams, LLP; Roy Gardner, Stetson University, College of Law, Moderated by the Association of State Wetland Managers, Tuesday, July 11, 2017